Martin County Coal Corporation petitions this court for review of a decision of the Workers’ Compensation Board rеndered February 23, 1995. The Board affirmed the ALJ’s opinion and award entered November 29, 1994. Martin County Coal seeks reversal on thе basis of two arguments: (1) Preece’s claim should have been dismissed for lack of due and timely notice; and (2) benefits, if properly awarded in the first place, should have been based on the 1993 rate. We affirm as to the first argument. However, we agrеe the benefits were erroneously based upon the 1994 rate and, to that extent, reverse and remand the matter.
Preеee worked for Martin County Coal in the company’s underground mining operations for twenty-one years. He was last exposed to the hazards of coal dust in Octo
Follоwing a chest x-ray taken December 22, 1993, Preece was diagnosed as suffering from pneumoconiosis. The diagnosis was first estаblished by reports of Drs. Wells and Anderson on January 3,1994, and January 7, 1994. The reports were communicated to Preece and hе filed a claim for retraining incentive benefits with the Department of Workers’ Claims on January 28, 1994. Notice of that claim was рrovided to Martin County Coal on February 23,1994.
Martin County Coal contends this notice did not satisfy the requirement of Ky. Rev.Stat. (KRS) 342.316(2)(a). The statutе provides that notice “[sjhall be given to the employer as soon as practicable after the employee first experiences a distinct mаnifestation of an occupational disease ... or a diagnosis of such disease is first communicated to him_” KRS 342.190 provides that the notice shall be in writing and sets forth the contents to be included in the notice. The statute states: “The notice may include the claim.”
The workers’ compensation statutes do not preclude treatment of the claim application as the method by which notice may be transmitted to an employer in cases of occupational diseasе claims. Although a separate written notice, preceding the filing of the claim, may have been contemplated by the legislature and may be the better practice, we see no reason to interpret the statutes as requiring such. A сlaim application, containing the mandatory information which is timely transmitted to the employer, may in appropriate circumstances satisfy KRS 342.316(2)(a). We are cognizant the notice requirements of the workers’ compensation statutes have been strictly enforced. Special Fund v. Francis, Ky.,
In this instance, the ALJ found that the notice of Preece’s claim was provided to his former emplоyer less than two months after he was first diagnosed as suffering from the disease. Under the circumstances, the ALJ concluded that with the filing of the application and the subsequent notification to the employer of that claim, the “due and timely notice” requirement had been satisfied. See Peabody Coal Company v. Powell, Ky.,
Affirming the ALJ’s determination that notice was sufficient, the Board cited and relied on Howell, supra, which provides:
It has been said thаt in cases of occupational disease such as pneumoconiosis, as opposed to eases of injury, ‘some of the elements which cause the rigid application of the notice requirement may be lacking....’ Harlan Fuel Co. v. Burkhart, Ky.,296 S.W.2d 722 , 723 (1956). This is espеcially true in a retraining incentive benefit claim since an employer cannot take any action to change the status of an employee whose diagnosis fits within those parameters. Furthermore, while the provisions of the statute mandate that notice be given, the statute should be liberally construed in favor of the claimant to effectuate the bеneficent purposes of the Workers’ Compensation Act. Marc Blackburn*842 Bnck Co. v. Yates, Ky.,424 S.W.2d 814 (1968).
Id. at 695.
There was sufficient evidence to support the ALJ’s findings. In aсcordance with the dictates of Western Baptist Hospital v. Kelly, Ky.,
The notice issue having been resolved in Preece’s favor, the sole remaining issue is whether the benefits Preece was entitled to should have beеn based on the rate in effect on the date of his last exposure. The governing rate is purely a legal question based on an application of the law to the undisputed facts. Relying on National Mines Corporation v. Pitts, Ky.,
Unlike the present case, Pitts and Thomas involved eases where the claimant continuеd to work after diagnosed and after filing the claim for retraining incentive benefits. In fact, the Thomas court recognized the longstanding rule established in Maggard v. International Harvester Co., Ky.,
This ease is, however, neither an injury case nor a disability case where the employee has quit his job so as to mark a time when he was ‘last exposed.’
Thomas at 579.
The present case is readily distinguished from Pitts and Thomas in that Preece has a definitive date of last exposure. Thus, in our opinion, the exception carved out in those eases does not apply. We conclude the view exprеssed in the Board’s dissent is accurate. Maggard is controlling precedent under the circumstances of this case.
Therefore, the matter is remanded for entry of an award based upon the rate in effect on October 12,1993.
All concur.
Notes
. The parties entered into a number of stipulations at the prehearing conference in this matter. Included in those stipulations are the following:
(1)Preece’s last date of exposure was 10/12/93;
(2) Preece was last exposed while employed by Martin County;
(3) Preece had twenty-one years underground exposure; and
(4) Preece had single exposure.